In the mid-1970s, California took a wrong turn on criminal justice, and the rest of the nation followed.
The intention was good: to provide certainty in punishment by getting rid of “indeterminate” sentences — terms like “five to 20 years” — with parole boards making the final release decision based on each inmate’s conduct in prison. Critics believed that flexible sentences were unfair to inmates, many of whom felt they were kept behind bars unfairly while others who committed the same crimes got parole. Set terms — “determinate” sentences — would make punishment more certain, and more fair.
But over the following decades, lawmakers who were keen to appear tough on crime undercut the sentencing reforms by adding dozens of “enhancements.” For example, a defendant would be sentenced to more time for being in a gang when the crime was committed . More time if a child was involved as a co-perpetrator or a victim. More time for repeat crimes.
Egged on by district attorneys and law enforcement unions, the Legislature sometimes tripped over itself in order to keep piling on the enhancements. There are now more than 100 enhancements, including several that add on extra time for having previously been convicted — in addition to those that add extra time for previously having been in prison.
There’s a good argument for treating repeat criminals differently than first-timers. But tacking on more time in multiple ways, all at the same time, was overkill.
Yet it was an era when politicians got rewarded at the ballot box for being merciless, not necessarily sensible. There was rarely an adult in the room to tell lawmakers they were being excessive or duplicative, or that their claims that more and longer enhancements boosted public safety were unsupported by data, or that they were filling prisons faster than we could build them — without driving down crime.
It would have been useful to have someone vet all those tough-on-crime bills collectively and put them in perspective before the Legislature voted on them. A natural choice might have been the state attorney general, although whoever held that office was subject to the same crack-down-on-crime political pressure as the lawmakers. And besides, despite their job descriptions, California’s attorneys general have never been much good at providing the Legislature or the public any guidance on criminal justice reform.
What the state needed was a sentencing commission — a panel of non-politician criminal justice experts to sift through proposed sentencing laws and report to lawmakers and the public whether the legislation was supported by data, adhered to a cohesive sentencing philosophy and made good sense from the perspective of justice, and not just politics.
Lawmakers would still make the law, but with a little more guidance and a little less pressure or frenzy.
Unfortunately, California never got a sentencing commission. Instead, criminal justice fashions changed, and lawmakers are now undoing many of the crazy enhancements their predecessors once added.
For the most part, that’s a good thing. Consider SB 136, which would repeal the mandatory extra year in prison defendants get for every time they previously were in prison or jail for a felony.
Note the distinction: The extra year is not for each previous conviction — that’s covered by a different enhancement — but for each previous felony term actually served behind bars. Imagine two people, each convicted of the same felony, but one goes to prison and one gets probation. When they’re both convicted a second time, the one who got the break before by avoiding prison now gets a second break by avoiding the enhancement. The one who got punished before now gets punished harder. The enhancement punishes the punishment.
SB 136 is good lawmaking in that it would roll back foolish lawmaking.
But should we toss out every other enhancement that was a result of the tough-on-crime frenzy? Not so fast. There is a place for sensible, measured anti-recidivism laws. It would seem there is good reason to keep a repeat rapist, for example, locked up longer the second time, rather than treat each offense in isolation.
Unfortunately, bills to repeal sentence enhancement tend to come up one at a time, without context and without data, in just the same way that a previous generation of lawmakers adopted bills to impose the enhancements.
A sentencing commission would be as useful now as it was in the tough-on-crime era. It could make criminal law a little less political. And a little more just.